A Free AND Ordered Space: Censure of School Board Members

Part 9 of the series

By Allen Clendaniel of Sedor, Wendlandt, Evans & Filippi, LLC

A frustrated School Board member publicly and ruthlessly criticizes the rest of the Board.  In meetings, he angrily calls the decisions of the Board stupid and irresponsible.  On Facebook, he writes scathing posts accusing the rest of the Board of wasting money, conflicts of interest and violations of the Open Meetings Act.  He even creates his own website attacking his fellow Board members.  The rest of the Board finally gets fed up.  At a public meeting, the Board passes a motion censuring the dissident Board member.  Can the Board legally censure an individual member? Or would that violate the dissident Board member’s right to free speech?

Last month, the United States Supreme Court answered this very question in the case of Houston Community College System v. Wilson.  David Wilson, an elected member of the Houston Community College System (HCC) Board of Trustees, sued HCC for allegedly violating his First Amendment right to free speech.

Wilson was an energetic critic of his fellow trustees.  He strongly disagreed with the majority’s decision to fund a campus in Qatar.  He criticized his fellow trustees through automated robo calls to the public.  He created and maintained a website criticizing the trustees.  He went on local radio accusing them of failing to represent their constituencies.   He even went so far as to hire private investigators to surveil a fellow trustee at her residence to determine if she actually lived in her district.  Fed up with Wilson’s antics, the Board of Trustees adopted a public resolution censuring Wilson for conduct it considered inappropriate, reprehensible, and inconsistent with the best interests of the College.  Wilson alleged that the censure violated his First Amendment rights because it represented an impermissible retaliatory action based on his speech. In a unanimous opinion, the Supreme Court ruled against him.

The Court relied on the (1) long settled and established practice dating back to colonial times that the power of assemblies to censure their members is “more or less assumed,” and (2) contemporary doctrine governing whether a retaliatory adverse action materially impairs an elected official’s First Amendment rights.

The Court opined that the adverse action at issue did not give rise to a First Amendment retaliation claim because (1) Wilson’s status as an elected official comes with an expectation that he will shoulder a degree of criticism about his public service and (2) HCC’s censure was itself speech.  The Supreme Court held that just as “[t]he First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy,” and that “it cannot be used as a weapon to silence other representatives seeking to do the same.”

An angry and dissident School Board member can be frustrating for the rest of members of the School Board.  In Alaska, only the voters can remove an elected School Board member from office through the recall process.  The rest of the Board does not, however, have to silently sit and take the abuse.  The Board can publicly censure a member for conduct it finds inappropriate and harmful to the School District.  The Supreme Court has ruled that censure is itself a form of free speech and is permissible under the First Amendment. 

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he views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.